The brain-invasive nature of certain novel therapies provokes discussion of the proper institutional role and competencies of a drug court and its participants; centrally, the setting-aside of the traditional adversarial model for a therapeutic team-based model leveraged by the criminal justice system.

Advances in basic and clinical neuroscience will soon present novel options for prediction, treatment, and prevention of antisocial behavior, particularly drug addiction. These hard-won advances have significant potential to improve public health and safety and increase efficiency in delivery of treatment and rehabilitation. Such therapies will undoubtedly find a large portion of their target population in the criminal justice system as long as drug possession remains criminalized. Improvements, however, are not without risks. The risks stem not only from the safety and side effect profile of such treatments, but also their insertion into a specialized criminal justice and sentencing system of “problem-solving courts” that may be overburdened, overpoliticized, undertheorized, and lacking sufficient checks and balances on institutional competency. While offering substantial therapeutic benefits, such developments might also short-circuit a critical policy discussion about the nature of drug use and its criminalization.

Harm is a pervasive doctrinal concept in constitutional criminal procedure. The Sixth Amendment protects a criminal defendant’s right to effective assistance of counsel — so long as she can prove that counsel’s deficient performance prejudiced her defense. On direct appeal, a reviewing court must vacate a criminal conviction obtained in violation of constitutional rights — unless the government can prove that the error was harmless. When challenging the constitutionality of a conviction via the writ of habeas corpus, a state prisoner is only permitted to advance claims previously raised in the state court system — unless she can demonstrate good cause for not raising the claim earlier, as well as actual prejudice flowing from the constitutional violation. No constitutional or statutory provision dictates that harm-related constructs ought to play a role in these rules. Nevertheless, courts have grafted such elements deeply into their doctrinal structure. The same pattern recurs in countless other facets of constitutional criminal procedure.

Peter Tiersma (pictured) and Lawrence M. Solan (Loyola Law School Los Angeles and Brooklyn Law School) have posted The Language of Crime (THE LANGUAGE OF CRIME, Peter M. Tiersma, Lawrence M. Solan, eds., The Oxford Handbook of Language and Law, 2012, Brooklyn Law School) on SSRN. Here is the abstract:

Many crimes are generally performed by using language. Among them are solicitation, conspiracy, perjury, threatening, and bribery. In this chapter, we look at these crimes as acts of speech, and find that they have much in common – and a few interesting differences. For one thing, they involve different acts of speech, ranging from promises to orders. For another, most language crimes can be committed through indirect speech. Few criminals will say, “I hereby offer you a bribe,” or “I hereby engage you to kill my spouse.” Thus, many of the legal battles involve the extent to which courts may draw inferences of communicative intent from language that does not literally appear to be criminal. Yet the legal system draws a line in the sand when it comes to perjury, a crime that can only be committed through a direct fabrication. We provide a structured discussion of these various crimes that should serve to explain the similarities and difference among them.

This article describes the evolution of the Tulane Criminal Law Clinic from a clinic focused on the more traditional “one client, one case” model of clinical education to its current form which combines individual client representation with systemic advocacy. This evolution began after the clinic found it hard to ignore the community impact of our success in challenging the constitutionality of a statute dealing with defendants who were found permanently incompetent to stand trial. The evolution was accelerated after the Tulane Criminal Law Clinic, along with the Loyola Criminal Law Clinic, was appointed to represent all of the inmates of Orleans Parish Prison after Hurricane Katrina wiped out the public defender system and left thousands of incarcerated defendants unrepresented.

As Justice Douglas wrote in Skinner v. Oklahoma, procreation is one of the “basic civil rights of man.” Along with marriage it is “fundamental to the very existence and survival of the race” and the state’s interference with it “threatens to have subtle, far-reaching and devastating effects.” And yet the U.S. and other countries regulate a wide range of reproductive activities such as forbidding anonymous sperm donation, funding abstinence education, criminalizing brother-sister incest, preventing the sale of sperm or eggs or surrogacy services, and forbidding single individuals from accessing reproductive technologies. In justifying these and other regulations of reproduction legislatures, courts, and commentators have relied (at least in part) on an idiom that I call Best Interests of the Resulting Child (BIRC) as a justification, which focuses on the best interests of the child who will (absent state intervention) result from these forms of reproduction.

Black and Hispanic males in low income communities insist, with statistical studies on their side, that police officers regularly stop and frisk them without the required reasonable suspicion. This is a failure of the Fourth Amendment. The Equal Protection Clause should be a tool that people of color can use to redress their being denied their constitutional rights on racial grounds. The Supreme Court’s equal protection jurisprudence, however, requires that claimants prove intent to discriminate. Known as the Intent Doctrine, this requirement has almost effectively removed from the Constitution, for racial minorities at least, the guarantee of equality under the law.

This article argues that when the United States Supreme Court decides Florida v. Jardines, No. 11-564, it should hold that a dog sniff for drugs of the exterior of a home is a search under the Fourth Amendment to the Constitution. The Florida Supreme Court had held that a dog sniff of the exterior of a house is a search requiring probable cause and a warrant. However, the Florida Supreme Court did not extend its holding to dog sniffs of the exteriors of apartments and similar dwellings in multi-unit structures. Faced with precedent from other jurisdictions that interprets United States Supreme Court case law to hold that a dog sniff is never a search, the Florida Supreme Court nonetheless endeavored to preserve the sanctity of the home from the intrusion posed by warrantless dog sniffs. Once determined on that path, the Florida Supreme Court should have extended Fourth Amendment protection from warrantless dog sniffs to types of homes other than houses. This article argues that, as homes, apartments and similar dwellings harbor expectations of privacy just as reasonable as those attached to houses, so that if houses receive protection, so should they. The Florida Supreme Court left its task incomplete, but Jardines has presented the United States Supreme Court with an opportunity to revisit its dog sniff jurisprudence, and to preserve the sanctity of the home.

This note analyzes the need for the Supreme Court to develop a constitutional standard for determining whether a government search of a public employee is reasonable under the Fourth Amendment. Specifically, this note stresses that the test needs to take into account emerging technology and its impact on public employees’ privacy rights. To properly ground these issues in current law, this note explores them through the lens of the Supreme Court’s two major opinions related to government searches of its employees — O’Connor v. Ortega and City of Ontario v. Quon. The note demonstrates that the Supreme Court has yet to produce a standard that adequately protects the privacy interests of public employees. To fill this gap in the law, this note proposes a balancing test that weighs the interests of both the government employer and the government employee. The test does so by considering the extent to which an employee’s work-related activity carries over into the private sphere of the home.

This Article examines the legal doctrine of “sentencing manipulation,” a claim, raised at the time of sentencing, in which the defendant argues that undercover police officers purposefully encouraged him to commit particular criminal conduct in order to expose him to a higher, and often mandatory, punishment. Currently, the sentencing manipulation claim has no consistent animating theory nor uniform definition or procedural treatment. Based on traditional theories of punishment as well as the systemic interest in an accurate determination of a defendant’s culpability, this Article argues that inducements, used by undercover officers and their agents to encourage the suspect to commit particular criminal conduct, should be the central focus of a reformed sentencing manipulation doctrine. The sentencing manipulation doctrine as currently conceived fails to recognize the potential and problematic impact of police inducements on an assessment of a defendant’s culpability and reflects binary concerns of guilt versus innocence that, while perhaps appropriate for a claim made at trial, are inapposite for a claim made at the time of sentencing. In determining where to draw the line between police inducements that affect a defendant’s culpability and those that do not, this Article also suggests a new way to view police conduct — on a continuum ranging from conduct that “facilitated culpability” to conduct that “overstated culpability.” A reformed doctrine of sentencing manipulation, as proposed by this Article, appropriately directs courts’ focus to inducements used by the police or their agents that result in the overstatement of a defendant’s culpability, and to offense conduct which should therefore be removed from the sentencing calculus.

In this paper we consider the potential effects that the application of a loser-pays-all rule may have on criminal litigation, including the decision to prosecute, criminal deterrence and legal error. We find that the effects of fee shifting on deterrence and on miscarriage of justice go in opposite directions. We also look at the effects of this rule on the rate of settlements (plea-bargaining) and when one party is wealth-constrained. We apply the insights of our model to current policy discussions such as the use of RICO proceedings and the financing of enforcement authorities in the United States.

This short article for the Harvard Law Review Forum replies to an essay by Professor Christopher Slobogin, An Original Take on Originalism, 125 Harv. L. Rev. F. 14 (2011), which was itself a response to a recent article, Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011). In this reply, Professor Kerr explains why equilibrium-adjustment is not originalism, and shows how originalist and non-originalist approaches to interpreting the Fourth Amendment can coexist using equilbrium adjustment.

Using ideas rooted in fact-finding accuracy, courts hold that defendants open the door to illegally-obtained evidence when they use exclusion as a "sword" to offer contradicted evidence or arguments. Yet the metaphor holding that rules excluding evidence can function "as shield, but not a sword" is inapt when applied to rules that promote non fact-finding goals. Whether the door is opened to admission of evidence excluded by such rules must depend on a contextual analysis of the rule's purpose. Finding that defendants cannot use the constitutional exclusionary rule to advance contradicted evidence or argument negates its necessary deterrent function. Defendants should lose immunity against illegally-obtained evidence only when they offer evidence derived from the same unlawful search or interrogation, or ask the jury to consider why the prosecution did not produce the suppressed evidence. The waiver rule allows the exclusionary rule to accomplish its purpose while protecting the integrity of our fact-finding process, which occasionally values social goals above fact-finding accuracy. By distinguishing arguments about the absence of suppressed evidence from those equivalent to assertions by witnesses required to lie about events to prevent jurors from learning of suppressed evidence, the waiver rule protects jurors from the assault on rational autonomy to which Kant objected. Whether Kant would find sufficient evidence law’s respect for jurors’ right not to be lied to or insist upon their right to all available evidence, we cannot expect evidence rules to function without limiting the evidence that jurors consider. As long as we do, courts must assure that their decisions about opening the door do not undermine the goals that exclusion is designed to achieve.